Consulting Policy FAQs

1. Why do we need a Consulting Policy right now?
2. What does the Consulting Policy do?
3. Why does the Consulting Policy apply on evenings and weekends when employees are “off the clock” with their institutional responsibilities?
4. Can an employee save up all of their Consulting days or “bank” their days to use them all at once?
5. How does the 1 day/week provision apply to faculty who have joint appointments that are 50% in two different departments/Colleges?
6. How does the Consulting Policy apply to part-time faculty who have 50%-99% FTE appointments?
7. Why can’t the University provide one-size-fits-all examples of what constitutes permitted consulting? 
8. How does the Consulting Policy apply to faculty who were hired to be 50% at the University and are also 50% in private professional practice? 
9. Can staff members at the University Consult?
10. Where do I go if I plan to Consult?
11. If a faculty member is hired to work at the University 50% of their time and in private professional practice for 50% of their time, is the time that they spend in their private professional practice considered Consulting?
12. If you have a startup company, is that considered Consulting?
13. Does serving as an expert witness qualify as Consulting?
14. Does the Consulting Policy apply to graduate students?
15. Are academic program reviews or external reviews considered Consulting?
16. What does the policy refer to when it states “research-related”?
17. How do we determine whether an activity is considered Consulting or professional service under the Consulting Policy?
18. If there is a disagreement between a faculty member and their unit head about whether an outside professional activity is professional service or consulting, how should it be handled?
19. How does the Consulting Policy apply to joint appointments?
20. How is the required internal MOU for Consulting activities routed?
21. What is the difference between Consulting and Outside Professional Activities (OPA)?
22. What is a conflict of interest?
23. What is a conflict of commitment?
24. As a Unit Head, what resources are available to me if I have concerns about a conflict of interest associated with a Consulting agreement?
25. Do I have to report any Consulting that I do in my Outside Professional Activities (OPA) Report?
26. Do I have to report any Consulting that I do as part of my Statement of Current and Pending Support in proposals submitted to federal research sponsors?
27. What did the process for developing the interim policy entail and what stakeholders/groups were engaged in that process?
28. What are the next steps in the review process for the interim policy?

1. Why do we need a Consulting Policy right now?

   • Helps UMD meet Federal, State, and Local requirements, including those from:
     • NSPM-33 and the regulatory and contractual requirements of federal agencies (e.g., PHS, NSF, and DOE); 
     • Maryland State Ethics Law - applies to all UMD employees; and
     • USM Policy on Professional Commitment of Faculty (II-3.10), which includes provision on outside professional consulting and requires an institutional policy be in place
   • Having a consulting policy will help protect UMD during federal investigations, and UMD’s lack of consulting policy has already been flagged as non-compliant by federal research sponsors. 

    

2. What does the Consulting Policy do?

   • Provides a definition of Consulting: beyond the employee’s institutional responsibilities; based in the appropriate professional discipline or area of expertise; and can be paid or unpaid.
   • Consulting is allowed for a maximum of 1 day/week or 52 days/year for 12-month employees or 39 days/year for 9-month;
   • Describes Exclusions for publications, professional service activities, and moonlighting (outside area of expertise)
   • Prohibits Banking of Consulting days to be used all at once, unless approved by Unit Head & next level administrator;
   • Prohibits research-related Consulting roles/titles that include fiduciary or management responsibility (CEO or Vice President)

    

3. Why does the Consulting Policy apply on evenings and weekends when employees are “off the clock” with their institutional responsibilities?

   The State Ethics Commission considers consulting to be secondary employment (and a conflict of commitment) regardless of what time of day or day of the week it occurs. In addition, the federal government requires disclosure of consulting activities (related to research) regardless of what time of day or day of the week it occurs, and also either requires or will require some form of time/effort reporting regarding consulting; and USM/University policies and procedures state that faculty and exempt staff work until the job gets done, regardless of the day or time. 

    

4. Can an employee save up all of their Consulting days or “bank” their days to use them all at once?
   “Banking” of Consulting days or accumulating multiple Consulting days over time in order to use them all at once for a larger consecutive period of time is prohibited without prior approval from the Unit Head and the next-level administrator.

    

5. How does the 1 day/week provision apply to faculty who have joint appointments that are 50% in two different departments/Colleges?
   The number of days that a full-time faculty member is eligible to Consult is based on whether they have a 12-month appointment or a 9 month appointment where the other 3 months are not spent on University obligations. If a faculty member has a joint appointment of equal time across two departments or two colleges that together comprises a 12-month full-time appointment, the faculty member is still eligible for a maximum of 52 Consulting days during an academic year with the approval of their Unit Head. The 52 day maximum applies across both appointments and across all Consulting agreements. 

    

6. How does the Consulting Policy apply to part-time faculty who have 50%-99% FTE appointments? The interim Consulting Policy does not specifically address part-time faculty who have 50%-99% appointments. Further clarification on such faculty appointments will be a consideration the Research Council will undertake during its review of the policy. We chose not to address part-time faculty at or above 50% in order to maintain flexibility and the discretion of the Unit Head to approve special circumstances. Further, it was recognized that many/most will need to be addressed on a case-by-case basis and therefore would not benefit from a policy-codified approach. There are a number of variables that must be considered for each part-time faculty member (as well as full-time faculty members). See FAQ #7. 

    

7. Why can’t the University provide one-size-fits-all examples of what constitutes permitted consulting? 
   There are too many variables that the University must consider when reviewing consulting and other conflict of commitment requests, including: 

   • Appointment type;
   • % FTE;
   • Type of consulting work (especially if it includes research);
   • Whether consulting work overlaps with UMD work; 
   • Whether the work creates a benefit to UMD in such a way that the work is properly characterized as a professional service activity and not consulting; 
   • Entities for whom they are consulting and whether those entities do business with UMD, compete with UMD, or pose other risks, such as consulting for a foreign government;
   • Existence of a research-related COI/COC, and whether it was disclosed and managed by UMD's COI/COC policies and procedures; 
   • Existence of a procurement-related COI, which must be disclosed to the Maryland Board of Contract Appeals; 
   • Existence of a non-research-related, non-procurement-related COI, which must be disclosed to the State Ethics Commission as secondary employment if the external entity has any relationship with UMD;
   • Whether the employee is using any UMD resources, including IP and/or students;
   • The potential for "IP leakage" (accidental disclosure of IP in the course of consulting, or not knowing which hat the employee was wearing when they developed IP); 
   • Whether the employee has properly disclosed consulting to the federal government (as applicable); 
   • Whether the consulting clients require a written contract with the UMD employee (in their individual capacity as a consultant); and
   • Any additional variables that must be examined per USM/UMD policies and procedures, State ethics law, federal laws and regulations, and the terms of UMD's federal awards.

    

8. How does the Consulting Policy apply to faculty who were hired to be 50% at the University and are also 50% in private professional practice? 
   The Consulting Policy excludes professional service activities. In some fields, faculty members are hired because their expertise in private professional practice is a benefit to the University, and it is the expectation that the faculty member maintain such activities. Under these circumstances, private professional practice would be considered a professional service activity and thus excluded from the Policy.

    

9. Can staff members at the University Consult?
   Yes. Staff members on 12-month appointments may Consult a maximum of 52 days in a fiscal year, with the approval of their supervisors. Staff may only Consult outside of their regular University work hours or during periods of approved applicable leave. Further, staff members must continue to meet all University obligations as determined by job descriptions and unit reviews and comply with Maryland State Ethics Law and Maryland State Ethics Commission guidance.

    

10. Where do I go if I plan to Consult?
    University employees should submit a disclosure on their Consulting activities in inTerp so they can be reviewed and approved appropriately. University employees will also need to sign the University's Consulting MOU and provide it to each external entity with which they plan to consult. 

     

11. If a faculty member is hired to work at the University 50% of their time and in private professional practice for 50% of their time, is the time that they spend in their private professional practice considered Consulting?
    No. If the faculty member was hired with the understanding that 50% of their time would be spent in private professional practice because that is what is specific to the discipline, it is part of their institutional responsibility and benefits the University, and therefore NOT considered Consulting. 

     

12. If you have a startup company, is that considered Consulting?
    State Ethics Law applies to all employees; however, State law provides a research carve-out that allows the University’s COI/COC policies and procedures to take the place of State ethics law and permits University employees to have startups as long as they are disclosed and managed pursuant to the COI/COC policies and procedures. Startup companies should be disclosed in inTERP so that they can be reviewed by the Conflict of Interest (COI) Committee. Because they constitute State Ethics Law, the University’s COI/COC policies and procedures take precedence over the Consulting Policy.

     

13. Does serving as an expert witness qualify as Consulting?
    Yes, that is considered Consulting because it is beyond the employee’s institutional responsibilities.

     

14. Does the Consulting Policy apply to graduate students?
    The Consulting Policy does not apply to graduate students because the University considers them to be students first and not employees, so State Ethics Law does not apply to them, however, the Conflict of Interest and Conflict of Commitment policies could apply to them, as well as federal requirements for sponsored projects. Please contact inTERP@umd.edu to determine if a COI disclosure is required.  

     

15. Are academic program reviews or external reviews considered Consulting?
    No, those activities are considered to be professional service activities, and therefore are excluded.  

     

16. What does the policy refer to when it states “research-related”?
    The safest interpretation of “research-related” is any activity that is associated with research and/or scholarship. These activities should be disclosed to the COI Committee through inTERP. Questions about COI disclosures can be directed to inTERP@umd.edu.

     

17. How do we determine whether an activity is considered Consulting or professional service under the Consulting Policy? 
    The Consulting Policy allows for discretion at the local level so the Unit Head can assess whether an activity is considered professional service within the specific discipline or area of expertise. Some factors that a Unit Head should consider in making this assessment include:
    - Whether the activity is part of the employee’s institutional responsibilities;
    - Whether the activity provides a benefit to the University, academia, and/or the public interest, regardless of whether there is personal remuneration;
    - Whether the employee was hired to conduct the activity as part of their institutional responsibility, such as 50% of their appointment in private practice in some disciplines; or
    - Whether it involves services provided to:
    (a) United States (U.S. or federal) national commissions;
    (b) U.S. federal, state, and local governmental agencies and boards;
    (c) federal and state granting agency peer review panels;
    (d) approved foreign governmental agencies, boards, and peer review panels;
    (e) philanthropic organizations or charities;
    (f) professional societies;
    (g) academic and/or professional journals, including editorial board service;
    (h) visiting committees; or
    (i) advisory groups to other U.S. or approved foreign universities, and analogous bodies.
    - Unit Heads who have questions can contact consulting@umd.edu and inTERP@umd.edu for advice on specific situations.

     

18. If there is a disagreement between a faculty member and their unit head about whether an outside professional activity is professional service or consulting, how should it be handled?
    The next level administrator, most likely the dean or the Provost’s Office/Associate Provost for Faculty Affairs for non-departmentalized colleges, can help with the assessment of whether the activity is professional service or consulting for a specific discipline.  

     

19. How does the Consulting Policy apply to joint appointments? 
    Joint appointments across units and/or colleges within the University require approval by both Unit Heads (typically department chairs) and/or Next Level Administrators (typically deans). For joint appointments across institutions (UMD & UMB), both the University of Maryland Policy on Consulting (II-3.10[E]) and the UMB Policy on Professional Consulting and Other External Professional Activities (II.3.10[A]) would apply to the faculty member. The faculty member would have to get prior approval from the Unit Head of each institution before performing any Consulting activities. The faculty member is also required to meet any additional requirements at UMB.  

     

20. How is the required internal MOU for Consulting activities created?
    The internal Consulting MOU can now be created and signed by the University employee in inTERP at: https://go.umd.edu/consultingMOU and does not require any additional signatures. The same Consulting MOU can be used for each external entity with which a University employee consults. Consulting activities should be disclosed in inTERP and will be reviewed within the disclosure system. 
     

     

21. What is the difference between Consulting and Outside Professional Activities (OPA)?
    Consulting is a type of outside professional activity in that it is beyond an employee’s institutional responsibilities, can be paid or unpaid, and is within their discipline or area of expertise. Consulting differs from general outside professional activities in that it excludes publications, professional services activities, and moonlighting; and is limited by the number of days that are allowable to 1 day/week or 52 days/year for 12-month employees and 39 days/year for 9-month employees.

     

22. What is a conflict of interest?
    “Conflict of Interest” means situations in which members of the University community are in a position to gain, or appear to gain, financial advantage or personal benefit (broadly construed) arising from their University positions, either through outside professional activities or through their research, administrative, or educational actions or decisions at the University. 

     

23. What is a conflict of commitment?
    “Conflict of Commitment” means a circumstance that arises when otherwise acceptable outside activities may compromise or appear to compromise the fulfillment of a University employee’s institutional responsibilities, as stipulated under Maryland State Ethics Law and/or otherwise determined by the Unit Head.

     

24. As a Unit Head, what resources are available to me if I have concerns about a conflict of interest associated with a Consulting agreement?

    • The Disclosure Office is available to meet with Unit Heads who have questions about outside activities including consulting. The Disclosure Office website also provides information on management strategies as well as examples of management plans across different circumstances. https://research.umd.edu/coi 
    • The Office of Research Transparency & Outreach can be a resource to members of the campus community who have questions about the University of Maryland Policy on Consulting. https//research.umd.edu/rto 

     

25. Do I have to report any Consulting that I do in my Outside Professional Activities (OPA) Report?
    No, the new disclosure system inTERP  (inTegrated External Relationship Portal) has been designed to provide a single site where all outside activities are disclosed, reviewed, and dispositioned in a centralized system-of-record, inTERP, which combines the functionalities of: 

    • Outside Professional Activities (OPA) reporting system, 
    • Kuali COI Disclosure System (KCOI), and
    • The Office of Faculty Affairs Consulting MOU system.

     

26. Do I have to report any Consulting that I do as part of my Statement of Current and Pending Support in proposals submitted to federal research sponsors? 
    Yes, federal sponsors require that you include consulting work as part of your Statement of Current and Pending (Other). 

     

27. What did the process for developing the interim policy entail and what stakeholders/groups were engaged in that process?

    • The Interim Consulting Policy was developed in response to the issuance of NSPM-33, USM Policy requirements, updates from the State Ethics Commission, ongoing federal investigations & actions, increased disclosure to COI & a better understanding of the Consulting landscape at UMD, and the Council on Governmental Relations (COGR) Report & Recommendations.
    • UMD Response & Development of Interim Policy included the establishment of a working group with representatives from the Office of General Counsel (OGC), the Office of Faculty Affairs, the Division of IT (DIT), the Conflict of Interest Committee, the Office of Institutional Research Planning & Assessment (IRPA), the Division of Research, the Office of Research Administration, Research Compliance, and the Office of the Provost to develop a draft policy.
    • The draft policy was reviewed by the Deans, the Senate Director, the Senate Leadership, Assoc Provost for Fac Affairs, Provost Rice, and OGC, and incorporated input on the COI & COC disclosure process.
    • Approved by the President on an interim basis, pending Senate review - October 14, 2022

     

28. What are the next steps in the review process for the interim policy?
    The Senate Executive Committee will charge the University Research Council with reviewing and refining the interim Consulting Policy. The RC will engage stakeholders during the review process and may choose to make a presentation to the Senate to solicit feedback from the community, or use other methods to ensure that a full picture is obtained prior to making a recommendation to the University Senate.